OfflWtf 1 M. Cris Armenta (SBN 177403) THE ARMENTA LAW FIRM APC 2 11900 W. Olympic Boulevard, Suite 730 Los Angeles, CA 90064 3 Tel: (310) 826-2826x108 Facsimile: (310) 826-5456 4 Email: [email protected] 5 Credence E. Sol (SBN 219784) C/O THE ARMENTA LAW FIRM APC 6 11900 W. Olympic Boulevard, Suite 730 r Los Angeles, CA 90064 n 7 Tel: (310) 826-2826x108 Facsimile: (310) 826-5456 8 [email protected] CO o 9 Attorneys for Plaintiff Gaylord Flynn 10 UNITED STATES DISTRICT COURT 11 FOR THE CENTRAL DISTRICT OF CALIFORNIA 12 GAYLORD FLYNN, an individual, V14-01901Mmm( &) 13 Plaintiff, COMPLAINT FOR: 14 vs. 1. Direct Infringement of 15 Copyright NAKOULA BASSELEY NAKOULA, Secondary Infringement of 16 an individual also known as SAM Copyright BACILE, MARK BASSELEY 3. Fraud 17 YOUSSEF, ABANOB BASSELEY 4. Unfair Business Practices NAKOULA, MATTHEW NEKOLA, 5. Libel 18 AHMED HAMDY, AMAL NADA, 6. Intentional Infliction of DANIEL K. CARESMAN, KRITBAG Emotional Distress 19 DIFRAT, SOBHI BUSHRA, ROBERT BACILY, NICOLA BACILY, THOMAS [Demand For Jury Trial] 20 J. TANAS, ERWIN SALAMEH, YOUSSEFF M. BASSELEY, and/or 21 MALID AHLAWI; GOOGLE, INC., a Delaware Corporation; and DOES 1 22 through 10, inclusive. 23 Defendants. 24 25 > o 0 CT> m o- I27 -a (-"•• 28 JUn A=r COMPLAIN! ^o ro c Mo o o ja». c 3. M»4 1 Plaintiff Gaylord Flynn ("Flynn"), by and through his counsel, on personal knowledge as 2 to his own actions and information and belief as to the actions, capabilities and motivation of 3 others, hereby alleges as follows: 4 NATURE OF CASE 5 1. On July 2, 2012, Defendant Nakoula Basseley Nakoula ("Nakoula") uploaded a 14- 6 minute trailerto the Internet, via YouTube.com, entitled "Muhammed Movie Trailer" among other 7 titles (the "Film"), making it available for the entire world to see. BetweenJuly 2 and September 8 11, 2012, the film gained worldwiderecognition after it was translated into Arabic and posted on 9 YouTube.com. An Arabic translation ofthe film was posted on YouTube, where it became the 10 object ofattention in many countries, particularly those that are predominantly Muslim. 11 2. In the Film, the Prophet Mohammed,the founder ofthe Islamic religion, is painted 12 in a light that is considered to be blasphemous by many Muslims. More specifically, the Film 13 portrays Mohammed as a child molester, a sexual deviant, and a barbarian. Immediately after the 14 Film received worldwide recognition as described above, violence erupted in the Middle East. 15 The violence included an attack on the United States Consulate in Benghazi, Libya, resulting in 16 the deaths offour Americans, including United States Ambassador Christopher Stevens and two 17 former Navy SEALS. 18 3. Following the episode in Benghazi, violence continued to erupt across the world, 19 including Afghanistan, Algeria, Australia, Azerbaijan, Bahrain, Bangladesh, Belgium, Canada, 20 Denmark, Egypt, France, Greece, Hong Kong, India, Indonesia, Iran, Iraq, Israel, Japan, Jordan, 21 Lebanon, Kuwait, Macedonia, Malaysia, the Maldives, Mauritania, Morocco, the Netherlands, 22 Niger, Nigeria, Oman, Pakistan, the Palestinian territories, the Philippines, Qatar, Saudi Arabia, 23 Serbia, Somalia, Sri Lanka, Sudan, Switzerland, Syria, Thailand, Tunisia, Turkey, and the United 24 Kingdom. Initially, observers across the globe held the Film directly responsible for that violence. 25 Then-United States Secretary ofState Hillary Clinton condemned the Film, calling it "disgusting 26 and reprehensible." Reportedly, President Barack Obama asked YouTube to review taking down 27 the Film; however, his Administration took no court action. 28 COMPLAIN"! 1 4. Plaintiff is an actor who appears in the Film. At no time during the filming of 2 Desert Warrior was he aware that it would contain any religious or sexual content. 3 5. The finished film, which was overdubbed, contains words and messages extremely 4 offensive to Muslims and to Plaintiff. 5 6. When Plaintiffwas first cast in the Film, which he was told was a desert adventure 6 film titled Desert Warrior, he received pages ofthe script from Defendant Nakoula, who identified 7 himselfas "Sam Bacile." Defendant Nakoula held himselfout as the writer and producer ofthe 8 Film. He managed all ofthe aspects ofproduction, and as far as Plaintiffobserved, he was in 9 charge ofall aspects ofthe production. 10 7. Plaintiffnever signed a release ofhis rights with respect to any aspect ofhis 11 copyrighted performance, which became his property and his copyright when it was affixed to a 12 tangible medium. 13 8. Despite the fact that Plaintiffwas led to believe that he was providing a dramatic 14 performance in an adventure film titled Desert Warrior, he never consented to be in a religiously 15 oriented film nor in one that propagates hate speech. In short, Defendant Nakoula used Plaintiff 16 and the other actors as puppets. The words contained in the film are so offensive, not only to 17 Plaintiff but to millions worldwide, that it sparked a riots and violence around the globe. In the 18 Film, Plaintiff is depicted as having participated in a bigoted piece ofhate speech and as holding 19 beliefs that are not only anti-Islamic but also antithetical to Plaintiffs world view. 20 9. Plaintiffwould never have, and in fact did not, agree to place his likeness, image, 21 persona, or dramatic performance into a hateful production, nor did he agree to be associated with 22 hate speech in any form or fashion. 23 10. The fallout that occurred after Plaintiffs performance was published aside, it is 24 clear that Plaintiffhas a copyright claim in his dramatic performance, which was fixed in tangible 25 form when it was filmed during the production ofDesert Warrior. Because Plaintiffdid not 26 assign his rights or his copyright interests in his dramatic performance, nor was the Film a "work 27 for hire," Plaintiffs copyright interests in his own dramatic performance remain intact. 28 COMPLAINT 1 11. Plaintiff has filed an application for federal copyright registration for the rights in 2 his dramatic performance. The application is pending. Regardless ofwhether the Copyright 3 Office has acted upon Plaintiffs application, federal law creates a copyright when the copyright is 4 created, not upon registration. A true and correct copy ofPlaintiffs copyright application, which 5 identifies the works that are the subject ofPlaintiffs copyright, is attached as Exhibit A. 6 12. Although the content that contains Plaintiffs performance was initially published 7 on YouTube, YouTube and Google have already been ordered by the Ninth Circuit Court of 8 Appeal to remove the content (at least insofar as it contains the performance offellow actor Cindy 9 Lee Garcia) from its platforms. After that order was issued, Google continued to enable its search 10 engine to link consumers to torrent sites - pirate download sites—that contained the Film, 11 including both the enjoined material containing Cindy Lee Garcia's performance and Plaintiffs 12 copyrighted performance. Google has a history ofresponding to DMCA takedown notices by 13 directing consumers to torrent sites. In this case, notwithstanding the fact that Google has been 14 informed both by Ms. Garcia and by Plaintiffthat its platforms continue to direct consumers to 15 torrent sites that contain infringing content, Google has failed to act. Because Google has refused 16 to adhere to Plaintiffs requests, it has lost any "safe harbor" immunities. 17 13. Plaintiffhas issued DMCA "takedown notices" to Defendants YouTube and 18 Google, who, by redirecting traffic to the torrent sites to the Film 24 hours a day, 7 days a week, 19 are infringing Plaintiffs protected rights in his performance, which fell within the scope ofthe 20 protection ofcopyright laws the instant his dramatic performance was fixed on film. Google has 21 thus far refused to expeditiously remove or disable the infringing content and/or links on its 22 platforms, despite being under a valid order from the Ninth Circuit Court ofAppeals to remove 23 content (at least that depicting fellow actor Cindy Lee Garcia) from all ofits platforms worldwide. 24 The DMCA Notices are hereby attached as Exhibit B. 25 26 27 28 COMPLAINT 1 GENERAL ALLEGATIONS 2 A. Jurisdiction and Venue 3 14. This is a civil action seeking damages and injunctive relief for copyright 4 infringement under the copyright laws ofthe United States, 17 U.S.C. § 101 et seq. Plaintiff also 5 seeks damages and injunctive relief under California state law, were not preempted by Federal 6 law. 7 15. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal 8 question jurisdiction), 28 U.S.C. § 1338(a) (jurisdiction over copyright actions), 28 U.S.C. § 9 1338(b) action asserting a state claim of unfair competition joined with a substantial and related 10 federal claim under the patent, copyright, or trademark laws), 28 U.S.C. § 1367 (supplemental 11 jurisdiction), and the doctrines ofancillary and pendent jurisdiction. 12 16. This Court has personal jurisdiction over Defendants because all Defendants have 13 "continuous, systematic" ties to California, and/or reside in California. 14 17. Venue in this District is proper because a substantial part ofthe acts and omissions 15 giving rise to the claims occurred in this district. 16 B. The Parties 17 18. Plaintiff Gaylord Flynn is an individual and at all relevant times herein was a 18 resident ofRiverside County, California. 19 19. Defendant Nakoula Basseley Nakoula, also known as Sam Bacile ("Defendant 20 Nakoula" or "Bacile") is an individual and at all relevant times herein as a resident ofLos Angeles 21 County, California. 22 20. Defendant Google, Inc., is a corporation incorporated in Delaware with its principal 23 place ofbusiness at 1600 Amphitheatre Parkway, Mountain View, California 94043.